Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
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Taxable costs & attorney fees; MCL 600.2421b(1); MCL 600.2164(1); Van Elslander v Thomas Sebold & Assoc, Inc; Waiver of issue as to the applicability of the fee schedule under MCL 500.3157 for medical services
In Docket No. 367653, the court affirmed the trial court’s judgment for plaintiff. In Docket No. 371964, it affirmed in part the trial court’s opinion and order as to plaintiff’s renewed motion for taxable costs and attorney fees as to all taxable costs, except those related to the deposition fees of the three expert physician witnesses, which it vacated and remanded for further consideration of the reduction in the costs awarded. It affirmed the portion of the opinion and order as to attorney fees. Plaintiff argued that the trial court erred by not awarding it all the taxable costs and attorney fees requested. On appeal, it only contested the costs awarded for the depositions of three expert physician witnesses. Plaintiff’s “renewed motion for taxable costs and attorney fees omitted an itemized explanation of the costs associated with obtaining the depositions of the expert physicians. Instead, the verified bill of costs reflected the total payments made to each witness.” This omission likely explained “the trial court’s reference to the absence of the minimal appearance fee or hourly rate for” Drs. N, P, and G. Plaintiff tried “to remedy this deficiency by attaching affidavits from the expert physicians affirming the overall costs associated with their depositions, in addition to the ‘legal fee schedules’ of Dr. [P] and Dr. [G], to its motion for reconsideration. Notably, however, the trial court did not provide any explanation, either in its initial opinion and order partially granting plaintiff’s motion for taxable costs and attorney fees, or in its subsequent order partially granting plaintiff’s motion for reconsideration, as to why the expenses of the expert witnesses were unreasonable or why $500 was deemed a sufficient hourly fee for each witness. Likewise, [it] did not address plaintiff’s exhibits reflecting the costs of the expert physician witness depositions, including the . . . affidavits, fee schedules, or the witnesses’ respective testimonies. Rather, the trial court broadly concluded that $500 constituted a sufficient hourly rate for each physician. Thus, [it] abused its discretion by neither adequately explaining the unreasonableness of plaintiff’s expert witness fees nor justifying $500 as a proper hourly alternative.” Plaintiff also challenged the trial court’s award of attorney fees under MCL 500.3148 on several grounds. But the court held that “the trial court did not abuse its discretion, or otherwise err, by apportioning fees, based on the subsection of benefits found to be overdue by the jury, particularly in light of the complexities surrounding the applicability of the fee schedule under MCL 500.3157 to charges incurred after” 3/15/21. The court also rejected plaintiff’s arguments “that the attorney fees awarded were unreasonable and constituted an abuse of discretion” and that the trial court did not “properly calculate the reasonable number of hours expended in the case.”
Life insurance contract rescission; MCL 500.2218; “Material misrepresentations” about the insured’s driving history in a policy reinstatement application; Oade v Jackson Nat’l Life Ins Co of MI (MI); Whether the beneficiary was an “innocent third party” entitled to have the court “balance the equities” before rescission; Bazzi v Sentinel Ins Co (MI); Titan Ins Co v Hyten (MI); Whether the policy was void ab initio; “Third-party beneficiary” rights under MCL 600.1405(2)(a)
[This appeal was from the ED-MI.] The court affirmed the district court’s rescission of the insured’s (Ewanda) life-insurance policy contract where she made “material misrepresentations” in her application, rejecting plaintiff-beneficiary’s (Ferguson) claim that, because she was an “innocent third party,” the district court had to “balance the equities” before the policy could be rescinded. After her life insurance policy from defendant lapsed, Ewanda completed a reinstatement application in which she made material misrepresentations about her driving history—she had two prior operating while impaired convictions and her driving license had been revoked, but she indicated otherwise in the application. As a result, after Ewanda died in an auto accident, defendant informed Ferguson that it considered the “policy ‘void from the date of reinstatement’ and would not pay any death benefit.” She sued in state court. The case was removed to federal court. The district court rescinded the policy and granted defendant summary judgment. Ferguson argued that she was an innocent third party under Michigan law, entitling her to “equitable balancing” before rescission. But the court reviewed MCL 500.2218 and held that in Michigan, “when an applicant misrepresents facts when applying for life insurance and the insurer would not have issued the policy had it known the true facts, those misrepresentations are material and the insurer may rescind the policy. The rescission provision in Ewanda’s reinstatement application” tracked the language of the statute. The court found that under Bazzi, no balancing is necessary where material misrepresentations were made when procuring the policy. It concluded that Ferguson was a third-party beneficiary of the policy, and as such, her rights were governed by MCL 600.1405. That statute was fatal to her claim that she was entitled to equitable balancing. Under Michigan law, defendant “was entitled to rescind the policy based on Ewanda’s material misrepresentations, with no equitable balancing required. The fact that Ferguson did not make the material misrepresentations herself is irrelevant—she stands in the shoes of Ewanda, with no greater rights than Ewanda would have had, i.e., no right to equitable balancing before” the policy could be rescinded as a matter of law.
Right to present a defense; Claim that a witness was rendered unavailable by threats of prosecution; MRE 804(a); People v Lopez; Exercise of a witness’s right to remain silent; People v Meredith; Intimidation; People v Reed (Unpub); Comparing People v Bassage; Protective measures when a potential witness “is intimately connected with the criminal episode”; People v Poma; Waiver; Ineffective assistance of counsel; Failure to argue a statement was substantively admissible under MRE 804(b)(3); People v Washington; Trial court ex parte communications with the jury; MCR 2.513(B); People v France; Administrative matters; Sentencing; Reasonableness & proportionality challenge to a within-guidelines sentence; Scoring of OVs 3 & 19
The court rejected defendant’s claim that the prosecution rendered a potential witness (F) unavailable by threatening to charge him with perjury and lying to an officer, and that this deprived defendant of his right to present a defense. It also held that defense counsel was not ineffective for failing to argue that F’s statement to a defense investigator was substantively admissible under MRE 804(b)(3). Further, defendant was not entitled to a new trial based on his claim that the trial court engaged in ex parte communications with the jury. Finally, it found that his within-guidelines sentence for second-degree murder was reasonable and proportionate, and that OVs 3 and 19 were properly scored. He was also convicted of felony-firearm, and was sentenced to 25 to 50 years for the murder conviction. Related to F, defendant asserted that reversible error occurred because the prosecution “relied on intimidation tactics that occurred in” Reed. But the court found that the factual circumstances here did “not reflect a calculated effort and threats by the prosecutor to prevent [F] from testifying at trial and to obtain the admission of his preliminary examination testimony instead.” The prosecution had that testimony “and it did not disclose that the victim had or brandished a gun during the altercation with defendant in the parking lot. However, the Thursday before a Monday trial date, the prosecutor received from defense counsel [F’s] statement now reflecting that the victim had a weapon.” As a result, “the prosecutor expressed concern to the trial court that [F] was changing his testimony, could possibly be subjecting himself to criminal liability for perjury and lying to a police officer, and should meet with an attorney to advise him.” The court concluded that the “prosecutor’s actions were consistent with Michigan caselaw.” It held that “the trial court and the prosecutor complied with the appropriate procedure when apprised that a witness may commit perjury.” As to defendant’s ineffective assistance claim, the only factor favoring the admission of F’s statement to the investigator as substantive evidence was that it was voluntarily given. The court also concluded that “the trial court did not engage in ex parte communications with a deliberating jury” and that its communication “only pertained to administrative matters.” Affirmed.
Sufficiency of the evidence; CSC II; MCL 750.520c(2)(b); “Sexual contact”; Prosecutorial error; Referencing facts not in evidence; Referring to the possible penalties defendant would face
The court concluded that (1) the evidence was sufficient to support defendant’s CSC II conviction and (2) prosecutorial error warranting reversal did not occur. He argued “that no evidence was introduced from which a reasonable juror could conclude that defendant intentionally touched NP or that the alleged touching was done for sexual arousal or gratification, or done for a sexual purpose.” The evidence introduced, however, supported “the reasonable inference that defendant’s touching of NP’s breasts was intentional: her testimony on direct examination that she was awakened when defendant put his hand under her shirt and rubbed his hand back and forth across her breasts. From NP’s testimony, a rational jury could infer that defendant acted intentionally.” He argued “that NP’s testimony did not establish that he was awake during the alleged incident and did not establish how long the alleged assault lasted. But NP’s lack of certainty regarding the length of the assault and whether defendant was awake did not negate the reasonable inference arising from NP’s testimony that defendant intentionally touched her breasts. The jury evidently found NP’s testimony credible, and this Court defers to the credibility determinations of the trier of fact.” Defendant also argued “that even if he intentionally touched NP, the evidence did not demonstrate that the touching was for a sexual arousal, gratification, or purpose. However, only minimal circumstantial evidence is required to demonstrate a defendant’s state of mind regarding intent.” The court found that from “NP’s description of the incident, a rational trier of fact could infer that defendant acted with a sexual purpose.” Also, it concluded that the other acts “evidence the prosecution introduced suggested that defendant had an inappropriate sexual interest in NP. NP testified that defendant had commented that she had a ‘J Lo booty,’ referencing the derrière of a celebrity to whom he was apparently sexually attracted.” She also “testified that on one occasion when she objected to sleeping in the same bed with defendant, defendant agreed that he would sleep elsewhere while she slept with her mother; when she awoke, however, defendant was sleeping next to her in the bed.” NP further “testified that on one occasion, defendant forced her to ‘spoon’ with him in bed; when she objected and tried to get out of bed, he pulled her back into the bed, trapping her leg underneath his and thrusting his hips and pressing his groin area against her, such that she could feel his penis through their clothing.” Finally, she “testified that when she was younger, defendant would spend too much time ostensibly drying her vagina after a bath.” The court again noted that it defers “to the credibility determinations of the jury which found NP’s testimony sufficiently credible,” and held that the evidence was sufficient to support his conviction. Affirmed.
Motion to suppress a confession; Right to counsel; People v Tierney; Whether the confession was voluntary, knowing, & given intelligently; People v Gipson; People v Cipriano
The court held that defendant’s motion to suppress was properly denied because his right to counsel was not violated and his “confession was knowingly, voluntarily, and intelligently made[.]” He was convicted of first-degree murder, FIP, and CCW. An ATF agent (B) began to ask him “about a home invasion that defendant may have been involved in on a different occasion, and defendant said that he would ‘rather have a lawyer.’ [His] statement, when taken out of context, sounds like an unequivocal request for counsel.” But the court noted that he “then said ‘when it comes to [the victim],’ he was willing to ‘give [the police] everything [he could] . . . with a lawyer or not . . . but all this other shit, [he didn’t] know.’ Based on the context, [he] was referring to the home invasion . . . . Thus, [his] statement indicated that he was willing to continue talking to [B] about the murder, but was unwilling to continue talking about the home invasion without an attorney. When [B] said they would have to stop talking if [he] wanted a lawyer, defendant said ‘[i]t’s not that I—I mean, cause obviously I’m still here talkin’ to you . . . [i]f I wanted to get up, I’d be like, I’m . . . walk me back to my cell, you know what I mean.’” They then took a break, after which B did not ask him “about the home invasion. Thus, defendant’s limited invocation of his right to counsel was honored” by B. As to whether his confession was knowing, intelligent, and voluntary, he was 26 years old at the time, “he claimed a lack of education but also claimed to have fully understood his rights when they were explained to him, and he had extensive prior dealings with police[.]” The interrogation lasted five hours with breaks, he “waived his constitutional rights before confessing, and there was no evidence or allegation from defendant that he was injured, intoxicated, drugged, abused, or threatened during the questioning.” B’s promise of leniency referred “to statements defendant might make in a polygraph exam that would be inconsistent with his statements in the prior interviews.” The court also noted that “defendant continued to claim that he was not the shooter for several hours” afterward. Further, he “testified at the motion hearing that he understood he had the right to an attorney and that he did not have to keep talking to the police, indicating that [his] statements were voluntary.”
Medical malpractice; Statutory immunity under the Pandemic Health Care Immunity Act (PHCIA); Franklin v McLaren Flint; Skipper-Baines v Board of Hosp Managers for City of Flint; Jokinen v Beaumont Hosp Troy; Retroactivity of the PHCIA; Constitutional rights
In this medical malpractice case, the court saw “no error in the trial court’s determination that defendants were entitled to summary disposition” based on PHCIA immunity. Plaintiff claimed “that the trial court erred by concluding that her suit was barred by the PHCIA’s grant of immunity.” But the court agreed “with the trial court’s conclusion that defendant’s alleged negligence and malpractice in providing services to the decedent falls within the scope of the PHCIA’s immunity, given the connection between that alleged negligence and malpractice and the COVID-19 pandemic.” The court found that although “none of the published authority regarding the PHCIA is quite on all fours with this case,” Franklin was the most analogous. Plaintiff instead pointed to Skipper-Baines and Jokinen, “but those cases do not aid her position.” The trial court’s decision was supported by the court’s “binding precedent interpreting the PHCIA’s grant of immunity, and” the court concluded that plaintiff did not demonstrate “that the trial court erred by awarding defendants summary disposition on this basis.” Plaintiff next argued “that the retroactive application of the PHCIA’s immunity is unconstitutional because it deprives her of a vested right to sue defendants without them having immunity, and the trial court erred by concluding otherwise.” The court disagreed. As “the trial court correctly recognized, it is clear that the Legislature intended the PHCIA to apply retroactively. And we also agree with the trial court that plaintiff has not demonstrated that such retroactive application is unconstitutional.” Thus, plaintiff “failed to show that the PHCIA’s retroactive application violated her constitutional rights.” Affirmed.
Premises liability; Kandil-Elsayed v F & E Oil, Inc; Slip & fall on porch steps; Whether plaintiff was an invitee; Stitt v Holland Abundant Life Fellowship
Holding that the trial court did not err in ruling that plaintiff was not an invitee on defendant’s property when he slipped and fell on the porch steps, the court affirmed summary disposition for defendant. There was no dispute that he “was on defendant’s property solely to deliver a purchase made by someone else, which was unbeknownst to and unsolicited by defendant.” He was delivering “a gift for defendant’s daughter from her godparents, which defendant had no role in ordering or purchasing. Plaintiff may have had an implied license to enter onto defendant’s property to make that unsolicited delivery.” However, under the facts and applicable legal standards, “he was not defendant’s invitee.” Plaintiff stressed “that defendant received a benefit from the delivery because he did not have to pick up the cookies or arrange for their delivery himself, but we fail to see how defendant’s receipt of a general and unsolicited benefit, alone, would transform plaintiff into his invitee.” Plaintiff also did not offer “anything to suggest that, had the godparents taken it upon themselves to bring their surprise gift to defendant’s home, they would have been defendant’s invitees in so doing.” The court found that it was “not apparent why, in this case, plaintiff’s relationship to defendant—and plaintiff’s corresponding status on defendant’s property—would be any different simply because the godparents hired plaintiff to deliver their gift for them.” The cases he sought to analogize this one to were all distinguishable.
Application for disability benefits; Remand under 42 USC § 405(g); “Sentence Four Remand”; Whether the district court was required to reach the merits of the complaint before remanding to the administrative law judge (ALJ) under Sentence Four; Whether the district court’s decision should be vacated; Clinkscale v Commissioner of Soc Sec (3d Cir); Melkonyan v Sullivan; Social Security Administration (SSA)
The court vacated the district court’s remand order, holding that a district court cannot remand a case to the SSA under Sentence Four of § 405(g) without explicitly affirming, modifying, or reversing the ALJ’s decision to deny a claimant benefits. Plaintiff-Follen was denied Social Security disability benefits and sought review in the district court. After answering the complaint, defendant-Commissioner determined that a remand to the ALJ was necessary for further explanation and reasoning. Follen agreed with a remand but requested that the ALJ be instructed to award benefits rather than reconsider the evidence. The district court granted the Commissioner’s motion, invoking Sentence Four of § 405(g). It did not “say that the ALJ committed reversible error, nor did it affirm or modify the denial of benefits.” Follen appealed. Sentence Four provides that “the district court can ‘enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.’” This is known as a “Sentence Four Remand.” The court explained that to issue a Sentence Four Remand, the district court must have reached a decision “on the merits of the claimant’s request for disability benefits.” In this case, the district court “expressly reserved ruling on the merits of the ALJ’s decision[.]” Following the Supreme Court’s approach in Melkonyan, as other circuits have done, it reviewed the district court’s “order for compliance with Sentences Four and Six.” Thus, it reviewed the district court’s “conclusion that factual disputes require remanding to the SSA” because this decision hinged “on its compliance with Sentences Four or Six.” The court determined “that the district court erred in issuing the remand order that it did. The remand order does not comply with Sentence Six because it does not include the predicate findings that Sentence Six requires. It does not comply with Sentence Four, at least as written, because it does not include a final judgment identifying a merits defect in the ALJ’s analysis. And the district court cannot issue remand orders outside the bounds of Sentences Four and Six.” Thus, the court found it must vacate the remand order and remand for the district court to clarify “what it is doing under § 405(g).”